Prospect
July 28,
2005
HEADLINE:
Blueprints not bombs
BYLINE: Tamara Chalabi
BODY: In February 1919, the
India office sent a telegraph
to the British administration in Baghdad
expressing concerns about a constitution for Iraq. The
British objective, said the message, "should be a flexible constitution giving
full play to different elements of population and recognising and incorporating
local peculiarities and idiosyncrasies." Today, 70 Iraqis-61 men and nine
women-on the constitutional drafting committee in Baghdad are wrestling with some very familiar
problems.
Despite the recent surge in suicide bombings, the constitution
dominates the Iraqi conversation. Lectures, seminars, television shows and
newspaper specials are all busily debating it. One of the main Iraqi television
talk shows recently dedicated an hour to interviews with representatives of
Iraq's smallest minorities-a Yezidi, a Mandean (a follower of St John the
Baptist), a Shia Kurd, a Turkmen and a Chaldean-on how they thought it would
affect them.
America's constitution took 12 years
to write. Italy's process started in 1943 and
the final document was produced in 1947. South Africa
took two years to produce a constitution after the fall of apartheid. So if
Iraq does opt for a six-month
extension-the draft constitution is due on the 15th August-there will be no
shame. The Americans are very keen to see the August deadline met, but the
Iraqis on the drafting committee carry the responsibility for completing the
task successfully. Time is not on their side, but in typical Iraqi fashion, it
is quite possible that after a sudden burst of committee activity on several
apparently insurmountable problems, a resolution will finally be reached deep
into the eleventh hour.
The transitional administrative law (TAL),
Iraq's current provisional
constitution, written originally in English by a group of US legal experts assisted by a few
western-educated Iraqi lawyers, is, after the Koran, the most important document
in Iraq today. It was adopted
unanimously in March 2004 by the Iraqi governing council-whose members represent
factions accounting for 90 per cent of the seats in Iraq's elected
parliament. Although not a perfect legal document, and subject to criticism for
its occupation-tainted provenance, the TAL has set the basic measure for
safeguarding the fundamental rights of Iraqis. Officially, the drafting
committee calls the TAL one of its "sources of reference." Behind the scenes,
however, I am told that the TAL is the basis of the new constitution. This also
means that the issues unresolved by the TAL now have to be sorted out by the
drafting committee.
Logistically, the committee faces several problems.
It has just been allocated four bare rooms inside the convention centre located
in the green zone, after weeks of meetings in borrowed rooms and hallways. In
the 50-degree Baghdad heat, the UN has just provided them
with air conditioning units and office furniture for their daily seven-hour
meetings. A committee budget of $ 10m has been approved by the assembly, but the
money has not been released, forcing the committee to beg $ 2m from the
UN.
Baha al-Araji, the committee's rapporteur, a moderate 40-year-old
lawyer and MP from the Independent National Bloc, which is close to Moqtada
al-Sadr, has the demanding task of attending the meetings of the drafters' six
subcommittees (plus the co-ordination committee). He wearily tells me, "We must
meet the 15th August deadline. The Iraqi people have been so patient and
expectant of this constitution. We cannot let them down." He works seven days a
week. Drafting committee members often barely make it home in time for Baghdad's 11pm
curfew.
The membership of the drafting committee mirrors the national
assembly breakdown of Shia and Kurds, and now 15 Sunnis have been drafted on
too-raising the original total from 55 to 70. The Sunnis were subject to the
same eligibility criteria that applied to MPs, including a ban on former members
of the four top levels of the Ba'ath party. Privately, MPs say that the assembly
has had to bend the rules on this, to keep the process moving.
If the
committee does come up with a draft by the deadline (any extension must be
requested by 1st August), the document will go to a national referendum some
time before 15th October. It will be subject not only to rejection by an overall
"no" majority of Iraq's 18 provinces, but also to the so-called Kurdish veto,
whereby if three provinces vote against by "super-majorities" of two thirds or
more, the document is rejected. As both the Shias and the Sunnis also heavily
dominate at least three provinces, the "Kurdish veto" is a Shia and Sunni veto
too.
This means that however much the Sunni Arabs might have
disadvantaged themselves by not participating in the January elections, the
people drafting the constitution will have to take Sunni interests into account.
If the Shias and Kurds fail to do so, their constitution fails. Moreover, the
Shias and Kurds have given the Sunnis a veto even at the drafting committee
level by choosing to make decisions by consensus rather than a vote.
Notwithstanding this effort to include them, it is not clear whether the 15
Sunnis want to participate in writing the constitution or to block the process
in protest against the current status quo which has ended their long political
hegemony in Iraq. Two of the 15 have already been
killed, in what seems like an effort to derail the constitution by other
Sunnis.
Enthusiasm is not shared by all committee members: there are only
about 25 who attend regularly. Between the Kurdish bloc and the Shia SCIRI,
there is a general attitude of "I scratch your back and you scratch mine." The
arrival of the Sunnis has added drama to the meetings. In one discussion about
enshrining the banning of the Ba'ath party in the constitution, one member of
the Kurdish bloc clashed with a Sunni former Ba'athist, who argued that the
Ba'ath party had been a good thing, but ruined by Saddam. The Kurdish MP, a
former prisoner at Abu Ghraib, felt this to be an insult. A shouting match
ensued, lasting for several hours and dragging in the rest. The MP eventually
won and the Ba'ath party will be banned. In a later episode of unusual openness,
both Sunnis and Shias discussed their fears of each other.
The three main
constitutional challenges the drafters face are federalism, Islam and
oil.
Federalism In March 1932, King Faisal I, Iraq's first king, looking to Iraq's history for a solution, suggested the
creation of three provinces along the lines of the three Iraqi vilayets of the
Ottoman empire, each with its own system of
taxation and local government. Faisal died a year later. Instead of the reforms
that he wanted, Iraq's central government transformed
over time into a police state that tormented the country. The federal option
being discussed for Iraq today represents a return of
sorts to Faisal's vision and to the long and relatively successful Ottoman
precedent.
The path that Britain chose for Iraq in 1921-an
independent centralised state that empowered the Sunni Arab minority at the
expense of everyone else-represented the triumph of political expediency. The
pressure for independence came from a small group of Iraqi Sunni nationalists,
promoted by the Arab bureau of TE Lawrence and Gertrude Bell. The alternative
model of decentralised direct British rule backed by the India office could have allowed for further
dialogue with Iraq's Kurds and Shia. The Arab
bureau lost patience with the Shia too quickly.
With Iraqis now choosing
their own destiny, that mistake is unlikely to be repeated with the Sunnis, who
are most opposed to federalism. Arguably, federalism is already instituted with
the Kurdish status quo. Several proposals are on the table, the most popular of
which is identical to the TAL: any three of the existing 18 provinces having the
right to form a region. In the interim, a halfway measure of decentralisation is
being promoted. This means that the provinces will have a much higher degree of
independence than today. They will have allocated budgets that they can spend
without interference from Baghdad. Meanwhile, Baghdad will continue to
dictate country-wide policy, especially over the so-called "sovereignty"
portfolios: the ministries of oil, finance, foreign affairs, defence and
interior. It is not clear whether this is a workable formula or not.
Oil
The disposition of Iraq's oil wealth is closely bound up
with the question of federalism. With most of Iraq's oil in
the Shia south and the Kurdish north, and with a history of the Sunni centre
misappropriating it, the new constitution has to ensure that regions that lack
oil share fairly in the wealth. According to the TAL, Iraq's resources
must be distributed equitably. The new constitution is unlikely to retreat from
this point.
One idea, backed by economic liberals, would be to create a
national oil holding company in which every Iraqi would hold a single
inalienable and non-transferable share. State oil revenues-the royalties from
privately managed producers-would be distributed to this nation of equal
shareholders. Iraq's government would get its
revenues from public taxation, rather than an unaccountable oil kitty. The
electorate would thus control the spending of its oil patrimony, and the
principle of governing and spending by consent would be enshrined in the most
powerful place: the pocketbook of the Iraqi individual. Iraqis want to avoid the
so-called "oil curse"-the opacity and arrogance of power that around the world
tends all too quickly to refine hydrocarbons into kleptocracy, with extremely
noxious political by-products. The one-Iraqi-one-share solution would also
eliminate arguments over the distribution of oil money among Iraq's various
regions.
Islam The role of Islam in the new Iraqi constitution has become
like a multiple choice question: "Should Islam be a) a source, b) the only
source, c) one principal source, or d) the principal source of legislation?" The
smart money right now is on something between choices c and d-maybe a
watered-down c. The benchmark for the committee's work is that Grand Ayatollah
Ali al-Sistani-as the spiritual leader of Iraq's 65 per cent Shia majority, he
has the ultimate veto in Iraqi politics-did not object in 2004 to the TAL's
language stating that Islamic Shari'a is one source among others, as long as
these sources do not contradict the Shari'a.
Iraq's challenge
with Shari'a in its constitution is the same issue that all Muslim states face:
harmonising Shari'a with civil law, and reconciling Shari'a with the sort of
general declaration of equal human rights that most states have in their
constitutions.
Iraqis need to decide how Islamic they want their new
state to be. The laws of Shari'a, according to most Islamic law experts, affect
only about 15 per cent of the law in general-namely matters relating to family
law, banking and the penal code.
Shari'a has had so many variations and
interpretations over the last 14 centuries that it is not in itself a threat to
the civil rights of Iraqis; the threat would come from governments that want to
impose a particular version of it-and in Iraq today there is nothing remotely
close to a Taleban or Iran-style mullah-ocracy with a decent hope of popular
sanction to do so. The Kurds wouldn't accept it. Neither would Sistani or the
country's large secular and moderately Islamic tendencies. Do not expect to see
handless thieves and stoned adulterers in the streets of Baghdad or Basra any time soon.
That said, the
Iranian-backed SCIRI party, with one of its members heading the drafting
committee, has openly advocated changing Iraq's personal
status law to dictate a more Islamic society. What this means for women is
reduced equality in matters of marriage, inheritance and social welfare.
Drafting committee members I have spoken to, however, are not very concerned.
Najiha Abul Amir of the Islamic Da'wa party-besides SCIRI, the other main
Iranian-backed party in Iraq and thus a potential force for abridging women's
rights-insists that her party has no aggressive agenda regarding the Islamic
part of the constitution: "Our constitution needs to respect Iraqi tradition and
custom which are Islamic in nature; we are not going to bring something alien to
us." She says that many activities granted as rights in other countries simply
could not be accepted in Iraq, such as homosexual marriage. As
far as imposing Islamic dress on all Iraqi women, she says, "As a woman, I don't
want my rights to be abused, so why should I deprive other women of what I
want?"
But what is it that she does want? Like every other female MP in
her party, Amir wears a veil and infuses her speech with Islamic
references.
When I questioned another Da'wa MP, Shirwan Al-Waili, about
women's rights, he resorted to Ayatollah Sistani's recent statement that women
possess equal political rights and must be allowed to seek the highest office in
Iraq. This formulation, of course,
emphasises political rights and does not mention social rights. When pressed
about how he would reconcile Shari'a with the principle of equality of all
citizens, which is also likely to be enshrined in the constitution as it is in
the TAL, Waili did not respond.
The reason for trying to meet the 15th
August deadline is to give the earliest possible full democratic legitimacy to
the Iraqi political process, and thus to further delegitimise the insurgency.
The danger for Iraqis is that rushing the process could endanger the historic
task of producing a viable and authoritative constitution. Instead of hurrying
the constitution, why not sign a status of forces agreement (SOFA) with the
coalition in the meantime? This would formally define the coalition as subject
to Iraqi sovereignty, and reassure Iraqis-increasingly fed up with the undefined
US military presence-that foreign
armies are there at the behest of their own elected
government.
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